Virginia Tech served as warning on campus privacy

Mass shooting led universities nationwide to re-evaluate policies

April 16, 2008|By Stevenson Swanson, TRIBUNE CORRESPONDENT

NEW YORK — In the year since a mentally disturbed student went on a shooting rampage at Virginia Tech, federal regulators, educators and legal experts have tried to reach a new understanding of the complex web of privacy laws that came under heavy criticism as one of the reasons no one acted in time to prevent the tragedy.

New regulations, information campaigns and legislation are all part of the effort to make sure that college and university officials realize that in cases of imminent threats, the safety of students trumps legal barriers that otherwise would prevent officials from discussing a student's mental state or revealing student records.

"The bottom line is that you'd always rather have a privacy lawsuit than a death lawsuit," said Robert Smith, a Boston lawyer who specializes in advising colleges and universities. "That's my advice to colleges."

Signs of problems

By the time Seung Hui Cho opened fire on his fellow students a year ago Wednesday, many on the Virginia Tech campus -- from roommates to administrators to mental health counselors -- had already picked up warning signals from his bizarre behavior that he was a threat.

But the failure to put all the pieces together ended in a shooting spree in which Cho killed 32 people before he shot himself, setting off reverberations as campuses reconsidered security measures and their treatment of mentally ill students.

In February, the Virginia Tech tragedy found a deadly echo at Northern Illinois University when a mentally disturbed former student killed five people and himself. And on Friday, officials at St. Xavier University on Chicago's Southwest Side closed the campus after threatening graffiti was found in a dormitory bathroom. After investigating Virginia Tech's response to the massacre and the events that led up to it, a state panel concluded there was "widespread confusion about what federal and state privacy laws allow."

Virginia Tech officials were hardly alone in not knowing what the law does and does not allow in the case of troubled students, according to many higher-education experts.

"A hands-off approach is often seen as the safest method of dealing with these students," University of Virginia law professor Richard Bonnie said at a recent Columbia University conference on campus violence. "Many colleges are using the uncertainties about the law as an excuse to do nothing."

The law at the center of the privacy debate is the Family Educational Rights and Privacy Act, a 1974 statute known as FERPA. For minors, the law prohibits schools from disclosing a student's educational records without consent from the student's parents. At age 18, that right transfers to the students, accounting for the rude awakening many parents receive when they find out they are no longer entitled to see their child's grades without his or her permission.

In addition to FERPA, a host of other federal and state laws, plus regulations and court rulings, govern the disclosure of educational and health records.

"It was a seed that got planted and grew and grew and grew," said Smith, who was an associate counsel for Boston University for 14 years before joining a Boston law firm. "It creates a freezing, if you will, among campus administrators when they try to act. There's this constant drumbeat of privacy, privacy, privacy."

As a result, college officials may hesitate to contact a student's parents about their child's troubling behavior, as happened with Virginia Tech in the case of Cho. In the Feb. 14 shootings at Northern Illinois University, it is unclear whether confusion over privacy laws played a role in the shooting spree by former graduate student Steven Kazmierczak, who was attending the University of Illinois at the time.

But several experts said what college administrators often don't realize is that FERPA and other privacy laws have provisions that allow for the disclosure of a student's records in case of an emergency. A flier that the U.S. Department of Education sent to colleges and universities last year said the law "permits school officials to disclose without student consent education records, including personally identifiable information from those records, to protect the health and safety of students or other individuals."

No surprise

That came as no surprise to Jan Walbert, vice president for student affairs at Arcadia University in Glenside, Pa. She says the law has never stopped her from taking action to help a troubled student.

"I do think there's this perception that elements of FERPA limit us from doing the right thing," said Walbert, a former president of the National Association of Student Personnel Administrators, which has called for increased training of faculty and others to make sure they don't let the law stop them from speaking up about a troubled student.

But even if privacy laws contain exemptions for emergencies, it is not always obvious what constitutes an emergency, she said.